Anticipatory bail for limited period may be granted.

All these petitions have been filed for anticipatory bail and these petitioners would state that they have been falsely implicated in the offences out of enmity and therefore, they might be released on anticipatory bail.

2. Mr.Shanmugasundaram, learned Public Prosecutor, appearing for the respondents in these petitions, would submit that in all these cases, the trial Magistrates have issued non-bailable warrants against these petitioners and therefore, these petitioners cannot be released on bail. As this Court in Sundaram v. State, (1995) 2 L.W. (Crl.) 564, has held that when non-bailable warrant was issued by the court before which the charge-sheet has been filed, the procedure would be to approach that court and file application for cancellation of the warrant and Sec.438, Code of Criminal Procedure is not the remedy for seeking bail, in view of this decision, the learned Public Prosecutor, contended that all these petitions are not maintainable before the High Court seeking anticipatory bail when non-bailable warrant is pending against these petitioners and the petitions are liable to be dismissed.

3. However, the learned counsels appearing for these petitioners, submitted that the views of the other High Courts and the latest view of the Supreme Court are different from that of this Court and therefore, the. petitioners are entitled to seek anticipatory bail under Sec.438, Code of Criminal Procedure. As the common question arose in all these petitions, they were listed as a batch and were heard in common.

4. The learned Public Prosecutor, contended that the framers of the Code of Criminal Procedure never intended to interfere with the process of the court, that in these cases as the final reports have been filed, the courts have taken cognizance of the offences alleged against these petitioners and when the cognizance has been taken by the Magistrates, invoking Sec.438, Code of Criminal Procedure would amount to interference in the process of the court, which is not the scope of the provision and the only way available to the petitioners is to surrender before the concerned courts seeking bail and all these petitions deserve to be dismissed. The learned Public Prosecutor further submitted that as already this Court has taken the view in Sundaram v. State, (1995) 2 L.W. (Crl.) 564, that the High Court cannot entertain the petition under Sec.438, Code of Criminal Procedure when non-bailable warrant is pending, this Court cannot go against that view.

5. Sec.438(1) of the Code of Criminal Procedure deals with the power of the Sessions Court and the High Court when a person apprehended arrest for the non-bailable offence. Sub-sec.(2) deals with the conditions that might be imposed in the event of grant of bail under the above sub-section. Sub-sec.(3) is in the nature of direction to the Police Officer and the Magistrate after the order granting bail under Sub-sec.(1). Other High Courts have considered the object of Sec.438, Code of Criminal Procedure and they have taken the view that there is no distinction in Sec.438(1) of the Code of Criminal Procedure as to whether the arrest is apprehended at the hands of police or at the instance of the Magistrate and therefore, when there is no curtailment of the powers for any such eventualities, the powers of the court under Sec.438 of the Code are not ousted to grant anticipatory bail by the Sessions Court and the High Court. It is true that this Court in Sundaram v. State, (1995) 2 L.W. (Crl.) 564, has taken the view that once non-bailable warrant was issued by the Magistrate, the accused person has to move before that court for regular bail. But the learned counsels appearing for the petitioners submitted that in the above decision of this Court, the powers of the Sessions Court and the High Court, while dealing with Sec.438, Code of Criminal Procedure, have not been specifically considered and no reason is given for non-applicability of Sec.438 of the Code when the non